ASSET PURCHASE AGREEMENT
Exhibit
2.1
BETWEEN
XXXX
XXXXXXXX, an individual
AND
ENTECH
ENVIRONMENTAL TECHNOLOGIES, INC.
a Florida
corporation
DATED
July
11, 2007
This
ASSET PURCHASE AGREEMENT (the "Agreement") is made and entered into as of
11th day of
July, 2007 by and between XXXX XXXXXXXX, an individual, (“PURCHASER”), and
ENTECH ENVIRONMENTAL TECHNOLOGIES, INC. a Florida corporation and (“ENTECH” or
“SELLER” and together with PURCHASER collectively “the Parties”).
PRELIMINARY
STATEMENT:
WHEREAS,
PURCHASER
desires to acquire certain of the assets of SELLER, including but not limited
to
all of the outstanding shares of stock of X.X. XXXXX, INC., a California
corporation and a wholly owned subsidiary of SELLER (“HBC”), and assume all the
liabilities of HBC from SELLER and SELLER desires to sell certain of its assets,
including but not limited to all of the outstanding shares of stock of HBC
and
transfer all the liabilities to PURCHASER; and
WHEREAS,
SELLER is engaged in the business of installation and maintenance of fueling
systems (the “construction and maintenance business”);
WHEREAS,
HBC
is a fueling station diagnostic and maintenance company with petroleum
construction experience in building and maintaining service
stations. HBC has recently expanded to also provide installation of
major household appliances for major retailers. All of SELLER’s
current operations are conducted through HBC (collectively the
“Business”);
WHEREAS, the parties intend to memorialize the purchase and sale of
certain of the assets of SELLER to PURCHASER and PURCHASER’S
assumption of all the liabilities of HBC upon the terms and subject
to the conditions set forth herein; and
NOW, THEREFORE, in consideration of the mutual covenants and premises
contained herein, and for other good and valuable consideration, the receipt
and
adequacy of which are hereby conclusively acknowledged, the parties hereto,
intending to be legally bound, agree as follows:
ARTICLE
I
SALE
AND PURCHASE OF ASSETS
AND
PURCHASE PRICE
SECTION
1.1 Sale of ASSETS. Upon the terms and subject to
the conditions set forth in this Agreement, and in accordance with applicable
law, the Closing on the Closing Date (as those terms are outlined in Section
2.1
hereof), SELLER agrees to sell, assign, transfer, convey and deliver to the
PURCHASER, and PURCHASER agrees to purchase and acquire certain assets,
including but not limited to all of the outstanding shares of capital stock
of
HBC, all as listed on Attachment A and incorporated herein (the “HBC
ASSETS”) and HBC and/or SELLER, as applicable, shall assign all of its rights
under and PURCHASER shall assume certain debts, liabilities or obligations
of
HBC and/or SELLER as listed and only as listed on Attachment B,
including, but not limited to the obligations of SELLER with respect
to
leases of real and personal property used in the SELLER’s operation of the
Business, and incorporated herein (the obligations assumed by the
PURCHASER is referred to herein as the “LIABILITIES”) The HBC
ASSETS listed on Attachment A shall be sold, assigned, transferred,
conveyed and delivered to PURCHASER subject only to those lien(s) and/or
attachments contemplated hereby.
SECTION
1.2 Purchase Price. The purchase price (the “Purchase
Price”) to be paid by the PURCHASER for HBC ASSETS is
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1.
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consideration
representing One Hundred Thousand Dollars ( USD $100,000);
and
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2.
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PURCHASER’S
assumption of the LIABILITIES; and
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3.
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Cancellation
of 1,500,000 shares of ENTECH held by PURCHASER and cancellation
of half
of any additional shares held by PURCHASER required to be transferred
to
Xxxx Xxxxx as a settlement for pending litigation unless transferred
directly from PURCHASER to Xxxx
Xxxxx.
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ARTICLE
II
CLOSING
DATE AND DELIVERIES AT CLOSING
SECTION
2.1 Closing
Date The closing of the transactions contemplated by this Agreement (the
“Closing”), unless expressly determined herein, shall be held at the
offices of PURCHASER at 1:00 P.M. EST, on May 25, 2007, or on such other date
and at such other place as may be mutually agreed upon by the parties, including
closing by facsimile with originals to follow. The date of the
Closing is sometimes referred to herein as the “Closing Date.” If payment
pursuant to Section 1.2 or delivery of HBC ASSETS pursuant to Section 2.2 is
not
made, then this Agreement will terminate subject to terms and conditions in
Section 7.1 hereof.
SECTION
2.2 Deliveries by
SELLER AND HBC. In addition to and without limiting any other
provision of this Agreement, SELLER AND HBC agrees to deliver, or cause to
be
delivered, to PURCHASER, at or prior to Closing, the following:
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(a)
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an
executed Assignment and Assumption Agreement of for HBC ASSETS
referenced in Section 1.1 and listed on Attachment A and Assignment
and Assumption Agreements for all LIABILITIES referenced in Section
1.1
and listed on Attachment B ( the “ASSIGNMENT AND ASSUMPTION
AGREEMENTS”);
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(b)
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one
or more certificates representing all of the outstanding capital
stock of
HBC; PURCHASER acknowledges that PURCHASER is in possession of
such capital stock;
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(c)
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a
written consent, in the form attached hereto as Attachment B and
made a part hereof, to the purchase and sale contemplated herein,
duly
executed by Xxxxxx Xxxxxx, for Xxxxxx Partners, LP, which includes
a full
and unconditional release of any and all warrants or rights in connection
with the stock of X.X. Xxxxx, Inc., together with a UCC-3 Termination
Agreement, duly executed by Xxxxxx Xxxxxx for Xxxxxx Partners, LP,
releasing any and all security interests in the stock of X.X. Xxxxx,
Inc.;
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(d)
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such
other documents or certificates as shall be reasonably requested
by the
PURCHASER or its counsel.
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SECTION
2.3 Deliveries
by PURCHASER. In addition to and without limiting any other
provision of this Agreement, the PURCHASER agrees to deliver, or cause to be
delivered to SELLER AND HBC, at or prior to Closing, the following:
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(a)
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One
Hundred Thousand Dollars ($100,000) required to be delivered on or
before
May 25, 2007; and
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(b)
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an
executed ASSIGNMENT AND ASSUMPTION AGREEMENT;
and
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(c)
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cancellation
of 1,500,000 shares of ENTECH held by PURCHASER and cancellation
of half
of any additional shares held by PURCHASER required to be transferred
to
Xxxx Xxxxx as a settlement for pending litigation;
and
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(d)
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confirmation
satisfactory to ENTECH that that ENTECH is or will be released from
all
HBC (and any designated ENTECH) obligations and liabilities;
and
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(e)
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confirmation
satisfactory to ENTECH issues arising between Corona Services Park
and
SELLER AND HBC are resolved, (as evidenced by an executed
Settlement Agreement attached hereto);
and
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(f)
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PURCHASER
shall submit his resignation as a Director of SELLER;
and
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(g)
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PURCHASER
shall transfer control of all SELLER bank accounts to SELLER or the
designee of Xxxxxxx Xxxxx (for the benefit of the SELLER);
and
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(h)
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such
other documents or certificates as shall be reasonably requested
by SELLER
AND/OR HBC or its counsel.
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SECTION
2.4 Further
Assurances. SELLER and the PURCHASER, shall, upon request, on or
after the Closing Date, cooperate with each other by executing and delivering
any additional documents and/or other instruments and doing any and all such
things as may be reasonably required by the parties or their counsel to
implement and/or fully effectuate the transactions contemplated by this
Agreement. PURCHASER agrees and acknowledges that the PURCHASER shall
remain as CEO and CFO of SELLER until the earlier of (i) a replacement executive
is appointed or (ii) six months from the date herein.
SECTION
2.5 Confidential
Treatment of Information. The parties hereto and their
representatives shall hold in confidence all data and information obtained
with
respect to the other parties or their business, and shall not use such data or
information or disclose the same to others, except such data or information
as
is already known to such party or is published or is a matter of public record,
or as otherwise required by Law or as may be disclosed with the written consent
of the other party. In the event this Agreement is terminated,
each party shall upon request promptly return to the other(s) any statements,
documents, schedules, exhibits or other written information obtained, reflecting
or derived from information provided by them in connection with this
Agreement. Furthermore, the parties hereto shall not use such
information and data for any competitive or commercial purposes.
SECTION
2.6 Consents and
Approvals by Third Parties. PURCHASER shall use its best efforts
to obtain as soon as practicable all consents and approvals of any third parties
necessary or desirable for the consummation of the transactions contemplated
by
this Agreement.
SECTION
2.7 Publicity and
Reports. Except as required by applicable Law PURCHASER shall
consult with SELLER before issuing any press release or otherwise making any
public statements with respect to this Agreement or the transactions
contemplated hereby and shall provide the other with draft copies of any
proposed press releases and a reasonable opportunity to comment thereon, and
shall not issue any such press release or make any such public statement before
such consultation and opportunity to comment, except as required by applicable
Law.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF SELLER AND HBC
SELLER
represents and warrants to PURCHASER, except as set forth in the attachments
hereto, as provided by SELLER to the PURCHASER on/or before the date hereof
or
previously disclosed by or on behalf of SELLER, or any of their affiliates
or
associates to PURCHASER, its agents, officers, directors or representative
(collectively the “Disclosure Schedule”), as follows:
SECTION
3.1 Organization
and Qualification. SELLER is a corporation duly organized,
validly existing and in good standing under the laws of the State of Florida,
and has the requisite corporate power and authority to own, lease and operate
its properties and to carry on its business as it is now being conducted and
is
duly qualified to do business in any other jurisdiction by virtue of the nature
of the businesses conducted by it or the ownership or leasing of its properties,
except where the failure to be so qualified will not, when taken together with
all other such failures, have a Business Material Adverse effect their
subsidiaries. HBC is a corporation duly organized, validly existing
and in good standing under the laws of the State of California, and has the
requisite corporate power and authority to own, lease and operate its properties
and to carry on its business as it is now being conducted and is duly qualified
to do business in any other jurisdiction by virtue of the nature of the
businesses conducted by it or the ownership or leasing of its properties, except
where the failure to be so qualified will not, when taken together with all
other such failures, have a Business Material Adverse effect their
subsidiaries
SECTION
3.2 Articles of
Incorporation and By-Laws. The complete and correct copies of
SELLER AND HBC’s Articles of Incorporation and By-Laws, as amended or restated
to date, provided to PURCHASER are a complete and correct copy of such document
as in effect on the date hereof and as of the Closing Date.
3.2.1
Authority. SELLER has all requisite corporate power and
authority, to execute and deliver this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement by SELLER and the consummation of
the
transactions contemplated hereby have been duly authorized by all necessary
corporate action and no other corporate proceedings on the part of SELLER is
necessary to authorize this Agreement or to consummate the transactions
contemplated hereby except as disclosed in this Agreement. This Agreement has
been duly executed and delivered by SELLER and constitutes the legal, valid
and
binding obligation of SELLER enforceable against SELLER in accordance with
its
terms, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium, or other similar laws affecting the enforcement of creditors' rights
generally and general principles of equity. SELLER holds all licenses,
certificates, permits, franchises and rights from all appropriate federal,
state
or other public authorities necessary for the conduct of its business and the
use of the Assets (the “Licenses”) and SELLER shall assign the Licenses, which
are assignable to the PURCHASER without the consent and/or approval of any
third
party, upon consummation of the transactions contemplated by this Agreement,
except where the failure to hold any of such License would have any effect
or
series of effects that is, individually or in the aggregate, material and
adverse to the operation of the Business as conducted by the SELLER on the
date
of this Agreement (each a “Business Material Adverse Effect”).
SECTION
3.3
No Conflict; Required
Filings and Consents.The
execution and delivery of this Agreement by SELLER does not, and the performance
by SELLER of its obligations hereunder will not: (i) conflict with or
violate the Articles of Incorporation or By-Laws of SELLER AND HBC; (ii)
conflict with, breach or violate any federal, state, foreign or local law,
statute, ordinance, rule, regulation, order, judgment or decree (collectively,
"Laws") in effect as of the date of this Agreement and
applicable to SELLER AND HBC the breach of which would have an effect or series
of effects that is, individually or in the aggregate, material and adverse
to
the consummation of the transactions contemplated by this Agreement (each a
“Closing Material Adverse Effect”); or (iii) result in any breach of, constitute
a default (or an event that with notice or lapse of time or both would become
a
default) under, give to any other entity any right of termination, amendment,
acceleration or cancellation of, require payment under, or result in
the creation of a lien or encumbrance on any of the properties or assets of
SELLER AND HBC pursuant to, any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or obligation
to which SELLER AND HBC is a party or by SELLER AND HBC or any of its properties
or assets is bound that would have a Closing Material Adverse
Effect. Excluding from the foregoing are such violations, conflicts,
breaches, defaults, terminations, accelerations, creations of liens, or
incumbency that would not, in the aggregate, have a Business Material Adverse
Effect or a Closing Material Adverse Effect.
SECTION
3.4 SEC
Reports. Since January 1, 2006, Entech has filed all reports and other
documents required to be filed by Entech with the Securities and Exchange
Commission (the “Commission”) under the Exchange Act.
SECTION
3.5
Compliance with Applicable
Laws. SELLER AND HBC is
not in violation of, or, to the knowledge of SELLER AND HBC is under
investigation with respect to or has been given notice or has been charged
with
the violation of any Law of a governmental agency, except for violations which
individually or in the aggregate do not have a Closing Material Adverse
Effect.
SECTION
3.8 Brokers. No
broker, finder or investment banker is entitled to any brokerage, finder's
or
other fee or commission in connection with the transactions contemplated by
this
Agreement based upon arrangements made by or on behalf of SELLER AND
HBC.
SECTION
3.9 Litigation. Except
as set forth in the Disclosure Schedule 3.9 hereto, there is no suit,
action, proceeding (in bankruptcy or otherwise), claim or investigation pending
or to the knowledge of SELLER AND/OR HBC threatened against, or affecting,
the
SELLER AND/OR HBC that would have a Closing Material Adverse Effect and there
exists no basis or grounds for any such suit, action, proceeding, claim or
investigation. None of the items described in Schedule 3.9 individually or
in
the aggregate, if resulting in a judgment, would have a Closing Material Adverse
Effect and/or a Business Material Adverse Effect on the ASSETS or the business
of SELLER AND HBC or the right of SELLER AND HBC to consummate the transactions
contemplated hereby.
SECTION
3.10 Ownership of
Assets. SELLER AND/OR HBC has good and marketable title to all of the
ASSETS, free and clear of any liens, claims, charges, options, rights of tenants
or other encumbrances the existence of which would have a Business Material
Adverse Effect. All of the ENTECH ASSETS which are tangible are in good
operating condition and reasonable state of repair, subject only to ordinary
wear and tear. SELLER AND HBC has not received any notice of violation of any
applicable zoning regulation, ordinance or law, or other law, regulation or
requirement relating to the Vehicle Manufacturing Business, and there is no
such
violation or grounds thereof which could have a Closing Material Adverse Effect
and/or Business Material Adverse Effect. Except pursuant to this Agreement,
Except as set forth in the Disclosure Schedule, SELLER AND/OR HBC is not a
party
to any contract or obligation whereby there has been granted to anyone an
absolute or contingent right to purchase, obtain or acquire any rights in any
of
the ENTECH ASSETS or any other portion of the business of SELLER AND
HBC.
SECTION
3.11 Full
Disclosure. No representation or warranty made by SELLER in this
Agreement and no certificate or document furnished or to be furnished to the
PURCHASER pursuant to this Agreement taken as a whole omit a material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
materially misleading.
ANY
FACT,
INFORMATION, CIRCUMSTANCE OR DISCLOSURE CONTAINED IN THE DISCLOSURE SCHEDULE
SHALL BE DEEMED TO HAVE BEEN DISCLOSED FOR ALL PURPOSES OF THIS AGREEMENT AND
THE CATALOGING, ORGANIZATION OR REFERENCE OF ANY SUCH FACT, INFORMATION,
CIRCUMSTANCE OR DISCLOSURE TO A GIVEN SECTION OF THIS AGREEMENT SHALL NOT LIMIT
THE EXTENT OF THAT DISCLOSURE TO THE REPRESENTATIONS, WARRANTIES OR PROVISIONS
OF THE REFERENCED SECTION OR OTHERWISE.
REPRESENTATIONS
AND WARRANTIES OF THE PURCHASER
The
PURCHASER represents and warrants to SELLER as follows:
SECTION
4.1 Organization and
Qualification. The PURCHASER is an individual with the requisite
power and authority to own, lease and operate its properties and to carry on
its
business as it is now being conducted.
SECTION
4.2 Authority. This
Agreement has been duly executed and delivered by the PURCHASER and constitutes
the legal, valid and binding obligation of PURCHASER enforceable against the
PURCHASER in accordance with its terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium, or other similar laws affecting the
enforcement of creditors' rights generally and general principles of
equity.
SECTION
4.3 Brokers. No
broker, finder or investment banker is entitled to any brokerage, finder's
or
other fee or commission in connection with the transactions contemplated by
this
Agreement based upon arrangements made by or on behalf of
PURCAHSER.
SECTION
4.4 Full
Disclosure. No representation or warranty made by PURCHASER in
this Agreement and no certificate or document furnished or to be furnished
to
the SELLER pursuant to this Agreement taken as a whole omit a material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
materially misleading.
SECTION
4.5 Legal
Responsibilities. PURCHASER agrees and acknowledges that PURCHASER is
a director and CEO of SELLER. PURCHASER agrees and acknowledges that
all representations and warranties of SELLER are the responsibility of
PURCHASER. PURCHASER has received SELLER Board of Director approval
for this transaction and acknowledges that it was negotiated in good faith
and
the ASSETS are being sold for fair value.
SECTION
4.5 No
Disparagement. PURCHASER agrees and acknowledges that all
times PURCHASER shall not make any disparaging remarks
regarding SELLER, its affiliates, officers, directors employees, agents or
representative in any communications meant for public release or dissemination
or in any subsequent communications and correspondence whatsoever.
ARTICLE
V
CONDITIONS
PRECEDENT TO SELLER AND HBC’S OBLIGATIONS
The
obligation of SELLER to consummate
the transactions contemplated hereby shall be subject to the fulfillment, on
or
prior to Closing Date, of the following conditions:
SECTION
5.1 No
Termination. This Agreement shall not have been terminated
pursuant to Article 7 hereof.
SECTION
5.2 LIABILITIES
Assumption. The PURCHASER shall have received all approvals
necessary in order to assume the LIABILITIES.
SECTION
5.3 Compliance. The
PURCHASER shall have complied with all of its obligations under this
Agreement.
SECTION
5.3 Representations
True and Correct. The representations and warranties of PURCHASER
contained in this Agreement shall be true and correct in all material respects
on and as of the Closing Date with the same force and effect as if made on
as of
the Closing Date.
SECTION
5.4 Compliance with
Covenants. PURCHASER shall have performed and complied in all material
respects with all covenants, agreements, and conditions required by this
Agreement to be performed or complied by it prior to or at the Closing
Date.
SECTION
5.5 No Adverse
Proceedings. On the Closing Date, no action or proceeding shall be
pending by any public authority or individual or entity before any court or
administrative body to restrain, enjoin, or otherwise prevent the consummation
of this Agreement or the transactions contemplated hereby or to recover any
damages or obtain other relief as a result of the transactions proposed
hereby.
ARTICLE
VI
CONDITIONS
PRECEDENT TO PURCHASER’S OBLIGATIONS
The
obligation of the PURCHASER to consummate the transactions contemplated hereby
shall be subject to the fulfillment, on or prior to Closing Date unless
specified otherwise, of the following conditions:
SECTION
6.1 No
Termination. This Agreement shall not have been terminated
pursuant to Article 7 hereof.
SECTION
6.2 Representations
True and Correct. The representations and warranties of SELLER
AND HBC contained in this Agreement shall be true and correct in all material
respects on and as of the Closing Date with the same force and effect as if
made
on as of the Closing Date.
SECTION
6.3 Compliance with
Covenants. SELLER AND HBC shall have performed and complied in all material
respects with all covenants, agreements, and conditions required by this
Agreement to be performed or complied by it prior to or at the Closing
Date.
SECTION 6.4 No Adverse
Proceedings. On the Closing Date, no action or proceeding shall be pending
by any public authority or individual or entity before any court or
administrative body to restrain, enjoin, or otherwise prevent the consummation
of this Agreement or the transactions contemplated hereby or to recover any
damages or obtain other relief as a result of the transactions proposed
hereby.
SECTION
6.5 Xxxxxx Consent and
Release. Xxxxxx Xxxxxx, representing Xxxxxx Partners,
LP, shall have duly executed and delivered to Purchaser the consent
and release attached hereto as Attachment B.
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ASSET Purchase Agreement
ASSET Purchase Agreement
ARTICLE
VII
TERMINATION,
AMENDMENT AND WAIVER
SECTION
7.1 Termination. This
Agreement may be terminated at any time prior to the Effective
Time:
(a) by
mutual
written consent of PURCHASER, on the one hand, and SELLER, on the other hand;
or
(b) by
PURCHASER upon a material breach of any representation, warranty, covenant
or
agreement on the part of SELLER AND HBC set forth in this Agreement, or if
any
representation or warranty of SELLER AND HBC respectively, shall have become
untrue, in either case such that any of the conditions set forth in Article
V
hereof would not be satisfied (a “Terminating Breach"), and such breach
shall, if capable of cure, not have been cured within ten (10) days after
receipt by the party in breach of a notice from the non-breaching party setting
forth in detail the nature of such breach; or
(c)
by the PURCHASER, if there shall be any court order which has become final
and
non-appealable that in the sole opinion of the PURCHASER has a Material Adverse
Effect on the ENTECH ASSETS, or in the event that the consent and release of
Xxxxxx Xxxxxx, Xxxxxx Partners, LP, is not duly executed and delivered to
Purchaser.
(d) by
SELLER upon a material breach of any representation, warranty, covenant or
agreement on the part of PURCHASER set forth in this Agreement, or if any
representation or warranty of PURCHASER respectively, shall have become untrue,
in either case such that any of the conditions set forth in Article V hereof
would not be satisfied (a “Terminating Breach"), and such breach shall,
if capable of cure, not have been cured within ten (10) days after receipt
by
the party in breach of a notice from the non-breaching party setting forth
in
detail the nature of such breach; or
(e)
by the SELLER, if there shall be any court order which has become final and
non-appealable that in the sole opinion of the SELLER AND HBC has a Closing
Material Adverse Effect.
(f)
By SELLER OR PURCHASER, at any time after July 31, 2007 if the Closing shall
not
have occurred on or before that date; provided, however, that the right to
terminate this Agreement under this Section 7.1(f) shall not be available to
any
party whose failure, or whose Affiliate’s failure, to fulfill any obligation
under this Agreement has been the cause of, or resulted in, the failure of
the
Closing to occur on or before such date;
SECTION
7.2 Effect of
Termination. In the event of the termination of this Agreement
pursuant to Section 7.1 hereof, each party hereto shall pay its own legal and
other expenses.
SECTION
7.3 Amendment. This
Agreement may be amended by the parties hereto any time prior to the Closing
Date by an instrument in writing signed by the parties hereto.
SECTION
7.4 Waiver. At
any time prior to the Closing Date, either the PURCHASER or SELLER, as
appropriate, may: (a) extend the time for the performance of any of
the obligations or other acts of other party or; (b) waive any inaccuracies
in
the representations and warranties contained herein or in any document delivered
pursuant hereto which have been made to it; or (c) waive compliance with any
of
the agreements or conditions contained herein for its benefit. Any
such extension or waiver shall be valid only if set forth in an instrument
in
writing signed by the party granting such a waiver.
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ASSET Purchase Agreement
ASSET Purchase Agreement
ARTICLE
VIII
POST
CLOSING COVENANTS
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8.1.1
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SELLER
agrees to reconcile with all auditors for verification of any and
all
confirmations.
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8.1.2
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The
representations and warranties of the SELLER AND HBC hereto contained
in
this Agreement or in any exhibit or schedule to this Agreement
shall
survive the Closing Date for eighteen
months.
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SECTION
8.2 Post-Closing Covenants of
the PURCHASER.
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8.2.1
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PURCHASER
agrees to remain as executive and director of ENTECH without compensation
until a new management board is in place and to facilitate settlements
with any and all outstanding creditors and service providers of
SELLER and
HBC, as necessary.
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8.2.2
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PURCHASER
agrees to assist in maintaining ENTECH’s timely filing
and reporting until such time as a new company is merged into
ENTECH or nine months from the filing of ENTECH’s 12/31/06 10Q, whichever
comes first. PURCHASER agrees to use its best efforts to ensure
all filing deadlines are met and agrees to penalties for any delays
that
occur as a result of events that were in PURCHASER’s
control.
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8.2.2.1
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PURCHASER
agrees to the following penalties for any subsequent filing
lapses:
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8.2.2.1.1
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Any
subsequent filing lapse (defined as missing any properly extended
deadline
and/or having “E” appended to trading symbol) shall be penalized
by:
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8.2.2.1.2
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350,000
shares for a first violation
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8.2.2.1.3
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500,000
shares for subsequent violation and increasing by 150,000 shares
with each
violation thereafter
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8.2.3
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PURCHASER
agrees to maintain all necessary records and relationships of ENTECH
to
facilitate the transition into new management and shall see to
the proper
conveyance of same to new
management
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8.2.4
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The
representations and warranties of the PURCHASER hereto contained
in this
Agreement or in any exhibit or schedule to this Agreement shall
survive
the Closing Date for eighteen
months.
|
Page
10
ASSET Purchase Agreement
ASSET Purchase Agreement
ARTICLE
IX
GENERAL
PROVISIONS
SECTION
9.1 Transaction
Costs. Each of the parties shall pay all of his or its costs and
expenses (including attorney fees and other legal costs and expenses and
accountants’ fees and other accounting costs and expenses) incurred by that
party in connection with this Agreement.
SECTION
9.2 Indemnification. PURCHASER
agrees to defend and hold the SELLER AND HBC and its officers and directors
harmless against and in respect of any and all claims, demands, losses, costs,
expenses, obligations, liabilities or damages, including interest, penalties
and
reasonable attorney’s fees, that it shall incur or suffer, which arise out of,
result from or relate to any breach of this Agreement or failure by the
PURCHASER to disclose or to perform with respect to any of its representations,
warranties or covenants contained in Section IV of this Agreement or in any
exhibit or other instrument furnished or to be furnished under this
Agreement.
SECTION
9.3 Indemnification. The
SELLER agrees to defend and hold PURCHASER harmless against and in
respect of any and all claims, demands, losses, costs, expenses, obligations,
liabilities or damages, including interest, penalties and reasonable attorney’s
fees, that it shall incur or suffer, which arise out of, result from or relate
to any breach of this Agreement or failure by the SELLER to perform with respect
to any of its representations, warranties or covenants contained Section III
of
this Agreement or in any exhibit or other instrument furnished or to be
furnished under this Agreement.
SECTION
9.4 Limitations. Except
as otherwise set forth below, no party shall have any obligation under the
indemnification provisions set forth herein (i) with respect to a breach of
the
representations and warranties contained herein, as applicable, unless notice
of
a claim for indemnity in respect of any such matter has been given to such
party
on or before the date which is eighteen (18) months after the Closing and (ii)
until the aggregate of all Liabilities payable by any party exceeds
$25,000. Provided, however that the foregoing limitations of this
Section 9.4 shall not limit in any respect a party’s right to indemnification in
connection with any action based upon intentional or fraudulent actions of
the
party owing indemnification.
SECTION
9.5 Procedure. A
party hereto agreeing to be responsible for or to indemnify against any matter
pursuant to this Agreement is referred to herein as the “Indemnifying Party” and
the other party or parties claiming indemnity is referred to as the “Indemnified
Party”. An Indemnified Party under this Agreement shall, with respect to claims
asserted against such party by any third party, give written notice to the
Indemnifying Party of any liability which might give rise to a claim for
indemnity under this Agreement promptly (and in any event within ten (10)
business days) upon the receipt of any written claim from any such third party,
and with respect to other matters for which the Indemnified Party may seek
indemnification, give prompt written notice to each Indemnifying Party of any
liability or loss which might give rise to a claim for indemnity; provided,
however, that any failure to give such notice on a timely basis will not waive
any rights of the Indemnified Party except to the extent the rights of the
Indemnifying Party are materially prejudiced. As to any claim,
action, suit or proceeding by a third party, the Indemnifying Party may assume
the defense of such matter, including the employment of counsel reasonably
satisfactory to the Indemnified Party and the payment of all expenses relating
thereto. The Indemnifying Party shall give written notice to each
Indemnified Party of its assumption of the defense of any action, suit or
proceeding within fifteen (15) days of receipt of notice from the Indemnified
Party with respect to such matter. The Indemnified Party shall have
the right to employ its or their own counsel in any such matter, but the fees
and expenses of such counsel shall be the responsibility of such Indemnified
Party unless (i) the Indemnifying Party shall not have reasonably promptly
employed counsel reasonably satisfactory to such Indemnified Party or (ii)
the
Indemnified Party shall have reasonably concluded that the conduct of such
proceedings by the Indemnifying Party and counsel of its choosing will prejudice
the rights of the Indemnified Party. The Indemnified Party shall
provide such cooperation and such access to its books, records and properties
as
the Indemnifying Party shall reasonably request with respect to such matter;
and
the parties hereto agree to cooperate with each other in order to ensure the
proper and adequate defense thereof. The Indemnifying Party shall not
make any settlement of any claim without the written consent of the Indemnified
Party, which consent shall not be unreasonably withheld. Without
limiting the generality of the foregoing, it shall not be deemed unreasonable
to
withhold consent to a settlement involving consideration or relief other than
the payment of money. After settlement and payment thereof, the
Indemnifying Party shall have no right to dispute or object to the amount of
the
settlement or a claim for indemnification based thereon.
With
regard to claims of third parties for which indemnification is payable
hereunder, such indemnification shall be paid by the Indemnifying Party upon
the
earlier to occur of: (i) the entry of a non-appealable judgment
against the Indemnified Party and the expiration of any applicable appeal
period, or if earlier, five days prior to the date that the judgment creditor
has the right to execute the judgment; (ii) the entry of a judgment or appellate
decision against the Indemnified Party; (iii) a settlement of the claim; or
(iv)
with respect to indemnities for liabilities relating to Taxes, upon the issuance
of any resolution by a Taxation authority. Notwithstanding the
foregoing, expenses of counsel to the Indemnified Party shall be reimbursed
on a
current basis by the Indemnifying Party if such expenses are a liability of
the
Indemnifying Party. With regard to other claims for which
indemnification is payable hereunder, such indemnification shall be paid
promptly by the Indemnifying Party upon demand by the Indemnified
Party.
Page
11
ASSET Purchase Agreement
ASSET Purchase Agreement
SECTION
9.6 Notices. All
notices and other communications hereunder shall be in writing and shall be
deemed to have been given (i) on the date they are delivered if delivered in
person; (ii) on the date initially received if delivered by facsimile
transmission with independent confirmation of receipt followed by confirmation
of notice by registered or certified mail or overnight courier service; (iii)
on
the date delivered by an overnight courier service; or (iv) on the fifth
business day after it is mailed by registered or certified mail, return receipt
requested with postage and other fees prepaid, to the address set forth herein
of such other addresses provided by each party to the other parties in
accordance with the terms or provisions hereof.
SECTION
9.7 Headings. The
table of contents and headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation
of
this Agreement.
SECTION
9.8 Severability. If
any term or other provision of this Agreement is invalid, illegal or incapable
of being enforced by any rule of law or public policy, all other conditions
and
provisions of this Agreement shall nevertheless remain in full force and effect
so long as the economic or legal substance of the transactions contemplated
hereby is not affected in any manner materially adverse to any
party. Upon such determination that any such term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner to the
end
that the transactions contemplated hereby are fulfilled to the extent
possible.
SECTION
9.9 Entire
Agreement. This Agreement (together with the Schedules, Exhibit,
certificates and documents referred to herein) constitute the entire agreement
of the parties and supersede all prior agreements and undertakings, both written
and oral, between the parties, or any of them, with respect to the subject
matter hereof.
SECTION
9.10 Binding
Effect. All the terms and provisions of this Agreement whether so
expressed or not, shall be binding upon, inure to the benefit of, and be
enforceable by the parties and their respective administrators, executors,
legal
representatives, heirs, successors and assignees.
SECTION
9.11 Preparation of
Agreement. This Agreement shall not be construed more strongly
against any party regardless of who is responsible for its
preparation. The parties acknowledge each contributed and is equally
responsible for its preparation.
SECTION
9.12 Governing
Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of California, without giving effect
to
applicable principles of conflicts of law.
SECTION
9.13 Preparation and
Filing of Tax Returns and Securities and Exchange Commission
filings.PURCHASER shall reasonably assist and cooperate with the SELLER
AND/OR HBC in the preparation of all the federal, state and local tax returns
of
SELLER AND HBC and all filings with the Securities and Exchange Commission,
when
and if appropriate, after the Closing Date due relating to periods prior to
the
Closing Date.
SECTION
9.14 Further
Assurances, Cooperation. Each party shall, upon reasonable
request by the other party, execute and deliver any additional documents
necessary to consummate the transactions contemplated by this
agreement.
SECTION
9.15 Assignment This
Agreement shall not be assigned by operation of law or otherwise; except that
PURCHASER may assign this Agreement to a related or successor entity, but any
such assignment shall not waive and/or discharge the PURCHASER of its
obligations hereunder and the PURCHASER shall be liable therefor as if it had
not assigned the same.
SECTION 9.16 Third
Parties Nothing in this Agreement, whether express or implied, is
intended to confer any rights or remedies under or by reason of this Agreement
on any persons other than the parties hereto and their respective
administrators, executors, legal representatives, heirs, successors and
assignees. Nothing in this Agreement is intended to relieve or
discharge the obligation or liability of any third persons to any party to
this
Agreement, nor shall any provision give any third persons any right of
subrogation or action over or against any party to this Agreement.
SECTION 9.17 Failure or
Indulgence Not Waiver; Remedies Cumulative. No failure or delay
on the part of any party hereto in the exercise of any right hereunder shall
impair such right or be construed to be a waiver of, or acquiescence in, any
breach of any representation, warranty, covenant or agreement herein, nor shall
any single or partial exercise of any such right preclude other or further
exercise thereof or of any other right. All rights and remedies
existing under this Agreement are cumulative to, and not exclusive of, any
rights or remedies otherwise available.
SECTION
9.18
Counterparts. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts,
each
of which when executed shall be deemed to be an original, but all of which
taken
together shall constitute one and the same agreement and such execution shall
be
conclusively evidenced by a facsimile transmitted copy or electronic
mail transmitted copy of the execution page
hereof.
[SIGNATURES
ON FOLLOWING
PAGE]
Page
12
ASSET Purchase Agreement
ASSET Purchase Agreement
IN
WITNESS WHEREOF, the PURCHASER and SELLER AND HBC have executed this
Memorandum as of the date first above shown.
| SELLER | PURCHASER: |
|
ENTECH
ENVIROMENTAL
TECHNOLOGIES,
INC.
a
Florida corporation
|
XXXX XXXXXXXX |
|
s/s
Xxxx
Xxxxxxxx
By:
/s/ Xxxx Xxxxxxxx
Title:
President
|
/s/ Xxxx Xxxxxxxx |
Page
13
ASSET Purchase Agreement
ASSET Purchase Agreement
ATTACHMENT
A
ASSETS
1. All
of the capital stock outstanding of X.X. Xxxxx, Inc.
Page
14
ASSET Purchase Agreement
ASSET Purchase Agreement
ATTACHMENT
A
LIABILITIES
ASSUMED BY PURCHASER
1. All
of the liabilities of X.X. Xxxxx, Inc., known and not known, arising prior
to
the Closing.
Page
15
ASSET Purchase Agreement
ASSET Purchase Agreement
ATTACHMENT
C
CONSENT
AND RELEASE
FOR
VALUABLE CONSIDERATION, the receipt and adequacy of which are hereby
conclusively acknowledged:
The
undersigned, XXXXXX PARTNERS, LP, does hereby consent to the sale by
ENTECH ENVIRONMENTAL TECHNOLOGIES, INC., a Nevada corporation, to XXXX XXXXXXXX
of all of the outstanding shares of stock of X.X. XXXXX, INC., a California
corporation (“HBC”), free and clear of any and all liens, encumbrances,
warrants, rights and any and all other interests which the undersigned may
have
against, to, or in connection with the stock of HBC (the
“Interests”).
Further,
the undersigned does hereby release and relinquish the Interests, and all of
them, and will, concurrently with the execution of this Consent and Release,
duly execute and deliver to XXXX XXXXXXXX a UCC-3 Termination Statement duly
terminating the Interests, and all of them.
XXXXXX
PARTNERS, LP
/s/
Xxxxxx
Xxxxxx
XXXXXX XXXXXX
Page
16
ASSET Purchase Agreement
ASSET Purchase Agreement
ASSIGNMENT
AND ASSUMPTION AGREEMENT
This
AGREEMENT is made this 11th day of July, 2007, by and among X.X. Xxxxx,
Inc. a California Corporation (“HBC”) and ENTECH ENVIRONMENTAL
TECHNOLOGIES, INC. a Florida corporation (collectively, with HBC, the
"Assignor") and XXXX XXXXXXXX, an individual ("Assignee")
(collectively, Assignor and Assignee, the “Parties”).
WITNESSETH:
WHEREAS,
the
Assignor
purchased certain assets and all liabilities as listed on Attachment A and
Attachment B (as attached to the Asset Purchase Agreement of the date herein
between the Parties, attached hereto) (collectively, the “Assets”);
and
WHEREAS,
the
Assignor
wishes to transfer its rights in the Assets to the Assignee;
NOW,
THEREFORE, in
consideration of the foregoing premises and the mutual covenants contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as
follows:
|
1.
|
Assignment
of Assets and Liabilities. Subject to the terms
and conditions set forth herein, Assignor hereby assigns and transfers
to
Assignee, and Assignee agrees to purchase and assume from Assignor,
all of
the Assets.
|
|
2.
|
Assignee
Bound. Assignee hereby accepts the foregoing assignment and transfer
and promises to be bound by and upon all the covenants, agreements,
terms
and conditions set forth herein.
|
|
3.
|
Benefit
and Assignments. This Agreement shall be binding upon and
inure to the benefit of the parties
hereto and their respective successors and assigns; provided that
no party
shall assign or transfer all or any portion of this Agreement without
the
prior written consent of the other party, and any such attempted
assignment shall be null and void and of no force or
effect.
|
|
4.
|
Good
Title. Assignee warrants and represents that he/she has
good title to said Assets, full authority to sell and transfer same
and
that said Assets are being sold free and clear of all liens, encumbrances,
liabilities and adverse claims, of every nature and description.
Assignee
further warrants that it shall fully defend, protect, indemnify and
save
harmless the Assignor and its lawful successors and assigns from
any and
all adverse claim, that may be made by any party against said
Assets.
|
|
5.
|
Waiver. Any
party hereto shall have the right to waive compliance by the other
of any
term, condition or covenant contained herein. Such waiver shall
not constitute a waiver of any subsequent failure to comply with
the same
or any different term, condition or
covenant.
|
|
6.
|
Applicable
Law. California, other than choice of law, shall govern the
validity, construction, interpretation and effect of this
Agreement.
|
Page
17
ASSET Purchase Agreement
ASSET Purchase Agreement
|
7.
|
Headings. The
paragraph headings of this Agreement are for convenience of reference
only
and do not form a part of the terms and conditions of this Agreement
or
give full notice thereof.
|
|
8.
|
Severability. Any
provision hereof that is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability, without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in
any
jurisdiction shall not invalidate or render unenforceable such provision
in any other jurisdiction.
|
|
9.
|
Entire
Agreement. This Agreement contains the entire understanding
between the parties, no other representations, warranties or covenants
having induced either party to execute this Agreement, and supersedes
all
prior or contemporaneous agreements with respect to the subject matter
hereof. This Agreement may not be amended or modified in any
manner except by a written agreement duly executed by the party to
be
charged, and any attempted amendment or modification to the contrary
shall
be null and void and of no force or
effect.
|
|
10.
|
Joint
Drafting. The parties agree that this Agreement hereto
shall be deemed to have been drafted jointly by all parties hereto,
and no
construction shall be made other than with the presumption of such
joint
drafting.
|
|
11.
|
Counterparts. This
Agreement may be executed by the parties hereto in one or more
counterparts, each of which shall be deemed an original and which
together
shall constitute one and the same instrument. In lieu of the
original documents, a facsimile transmission or copy of the original
documents shall be as effective and enforceable as the
original.
|
IN
WITNESS WHEREOF, each of the parties hereto has caused this Assignment
and Assumption to be executed as of the day and year first above
written.
| ASSIGNOR | ASSIGNEE: |
|
ENTECH
ENVIROMENTAL
TECHNOLOGIES,
INC.
a
Florida corporation
|
XXXX XXXXXXXX |
|
s/s
Xxxx
Xxxxxxxx
By:
/s/ Xxxx Xxxxxxxx
Title:
President
|
/s/ Xxxx Xxxxxxxx |
|
X.X.
XXXXX, INC.
a
California corporation
|
|
|
s/s
Xxxx Xxxxxxxx
By:
/s/ Xxxx Xxxxxxxx
Title:
President
|
Page
18
ASSET Purchase Agreement
ASSET Purchase Agreement
